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Supreme Court to hear arguments in a case that could weaken federal rule making

STEVE INSKEEP, HOST:

Today, the U.S. Supreme Court hears a challenge to the way the federal government regulates about everything. A system in place for decades has imposed limits on air and water pollution and gun safety and workplace protections. Now a group of herring fishermen from New Jersey has questioned the system. NPR's Carrie Johnson reports.

CARRIE JOHNSON, BYLINE: For Bill Bright, seafood is all in the family.

BILL BRIGHT: I'm kind of the black sheep of the family, that I actually went to the sea, and now my kids are following my footsteps. My boys are working on the boats. And my daughters - we have a shoreside business, and they run that. So we're all - the whole family is in the seafood business, 100%.

JOHNSON: Bright says he welcomes regulations to keep the herring population strong in the waters off of Cape May, N.J., but he says the Fisheries Service went too far when the government mandated vessel owners like him had to pay for observers on the boats to make sure they're following the rules.

BRIGHT: But we have this hanging over our head. And we're not under any illusion. Once they start charging us for the monitor, that's never going away.

JOHNSON: He's the lead plaintiff in a case the Supreme Court will hear today with implications far beyond the fishing industry.

DAVID DONIGER: The real purpose of it is to enfeeble the federal government so that we don't have the capacity to deal with modern problems and billionaires and big companies can just do what they want and not be checked.

JOHNSON: That's David Doniger, senior attorney at the Natural Resources Defense Council, a nonprofit environmental advocacy group.

DONIGER: Well, I have frequently quipped that my career would be bookended by the birth and death of the Chevron doctrine, and I will be on the losing side both times. I hope that's wrong.

JOHNSON: In 1984, Doniger argued and lost an environmental law case involving the energy giant Chevron and the EPA at the Supreme Court. The facts of that case are overshadowed by a system it enshrined about the way judges evaluate federal regulations under legal challenge. Again, David Doniger.

DONIGER: So the doctrine from the Chevron case is judges are supposed to follow a two-step procedure.

JOHNSON: First, judges are supposed to ask whether a law is clear when someone challenges a federal rule. Then if the law is not clear, if there's an ambiguity...

DONIGER: Then the court is supposed to defer to the agency decision if it's a permissible or reasonable interpretation.

JOHNSON: In practice, that's meant that courts often defer to people inside federal agencies who are experts on things like pollution, banking and food safety. Paul Clement has argued more than 100 times before the Supreme Court.

PAUL CLEMENT: I can't think of a better way to mark the 40th anniversary of the Chevron decision than with an overruling.

JOHNSON: Clement will represent the herring fishermen today.

CLEMENT: In our view, this really has gotten out of control.

JOHNSON: Clement says the current system means Congress never has to weigh in and reach a compromise on the toughest policy questions because one side or the other can just wait for a change in the executive branch every four or eight years, and the rules will swing back-and-forth based on the views of the political party in power. Again, Paul Clement.

CLEMENT: I think it's really as simple as this, which is when the statute is ambiguous and the tie has to go to someone, we think the tie should go to the citizen and not to the government. And one of the many problems with the Chevron rule is it basically says that when the statutory question is close, the tie goes to the government. And that just doesn't make any sense to us.

JOHNSON: Conservatives on the Supreme Court, including Clarence Thomas and Neil Gorsuch, have been critical of the Chevron approach for years now. Gorsuch even wrote that Chevron deserves a tombstone.

The effort to overturn the nearly 40-year-old case has the support of conservative legal foundations, the Gun Owners of America and a trade group for electronic cigarette makers. Don McGahn, the White House counsel for former President Donald Trump, made deregulation a top priority. McGahn told a conservative audience during the Trump years that Trump nominated judges who shared that outlook.

(SOUNDBITE OF ARCHIVED RECORDING)

DON MCGAHN: There is a coherent plan here where, actually, the judicial selection and the deregulatory effort are really the flip side of the same coin.

JOHNSON: The Biden administration is defending the fishing regulation and the Chevron doctrine as a deeply ingrained part of administrative law, one that's crucial to the health and safety regulations people rely on. The solicitor general says in court papers that the monitoring program for the herring fishermen is not operating due to a lack of funds and that vessels that already paid for monitors have been reimbursed by the federal government. So the actual stakes for the herring fishermen are low. David Doniger, the environmental advocate, says this case is about far more than fishing regulation. The hidden agenda, he says, is protecting big oil, big gas and big financial industries.

DONIGER: The herring boats are just - you know, they're just a front, and they're kind of a red herring.

JOHNSON: A decision by the Supreme Court is expected by June.

Carrie Johnson, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Carrie Johnson is a justice correspondent for the Washington Desk.